Delhi High Court
State (Gnct Of Delhi) vs Hargovind on 2 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 09.05.2018
% Judgment delivered on: 02.07.2018
+ CRL.A. 334/2018
STATE (GNCT OF DELHI) ..... Appellant
Through: Ms. Aashaa Tiwari, Additional Public
Prosecutor for the State with SI
Shailendra Kr. Singh, PS - Gokulpuri
versus
HARGOVIND ..... Respondent
Through: Mr. S.S. Ahluwalia and Mr. Jatin
Teotia, Advocates (DHCLSC)
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P.S.TEJI
JUDGMENT BY THE COURT
1. The State has preferred the present appeal against the judgment dated
15.09.2016 delivered by the learned Additional Sessions Judge -01, North
East District, Karkardooma Courts, Delhi in Sessions Case No.44750/2015
titled as State vs. Hargovind, arising out of FIR No.36/2013 registered under
Section 363/366/376 IPC and Section 4 of the POCSO Act at Police Station
Gokalpuri, Delhi, whereby the accused/respondent was acquitted from the
charges leveled against him.
Crl.A.334/2018 Page 1 of 27
2. The facts in brief are that on 22.01.2013, complainant- PW4 lodged a
complaint at Police Station Gokalpuri that his daughter, aged about 13 years,
has been kidnapped by someone. On the basis of his complaint, the case
was registered under Section 363 of IPC. Subsequently, on 27.02.2013, the
victim was found present at the bus stop, Yamuna Vihar by the complainant
and his uncle (phoofa) Prabhu Dayal. The accused Hargovind- „Chacha‟ of
the prosecutrix was also present with her. The intimation in this regard was
given to the Police Station and statement of the victim was recorded under
Section 161 of Cr.P.C. On the basis of the statement of the victim, penal
Section 4 of the POCSO Act was added in the FIR. Subsequently, the
statement of victim under Section 164 of Cr.P.C. was recorded in which the
allegations of kidnapping and rape were leveled against the
accused/respondent and therefore section 366/376 of IPC were also added in
the FIR. Investigation was conducted and completed and charge sheet was
filed against the accused/respondent Hargovind.
3. Charge for the offence punishable under Sections 363/366 IPC and
Section 4 of the POCSO Act, and alternate charge under Section 376 IPC
was framed against the accused to which he pleaded not guilty.
4. To prove its case, the prosecution has examined 18 witnesses,
including PW1-the victim, PW4-the father of the victim, who is also the
complainant, PW7- the landlady of the premises where the accused resided
with the victim and, PW5-the principal of the school where the victim
studied- to prove her date of birth. After completion of prosecution
evidence, statement of the accused under Section 313 Cr.P.C. was recorded
Crl.A.334/2018 Page 2 of 27
in which he claimed that he never enticed the victim, nor committed rape
upon her, nor kept her at his house. However, he did not lead any evidence
in his defence.
5. After considering the material placed on record and the depositions of
witnesses, the learned Additional Sessions Judge acquitted the
accused/respondent from the charges framed against him. The Ld. ASJ held
that it was proved that the victim was found in the company of the accused
at Yamuna Vihar from where they both were apprehended. He also held as
proved, the fact that the accused had resided in the house of PW7 on rent for
about five days in the year 2013 at District Jalaun, UP, with the victim. The
Ld. ASJ held that the victim had gone with the accused with her consent,
and no force was used by the accused. On the aspect whether the accused
had established sexual relationship with the victim, the Ld. ASJ held that the
evidence on record was not sufficient to establish the said fact. He held that
the prosecution had not established that the prosecutrix/ victim was about 13
years and 3 months when she eloped with the accused. He held that the
prosecution had not established that the victim/ prosecutrix was a minor on
the date of the incident. Being aggrieved by the judgment of acquittal, the
State had preferred the instant appeal.
6. For the prosecution to succeed in its present appeal, it is essential for
the State to establish, firstly, that the victim/ prosecutrix was below the age
of discretion i.e., 16 years at the relevant time. To establish the offence of
penetrative sexual assault, the prosecution has to also establish the same on
the basis of the evidence led in the case.
Crl.A.334/2018 Page 3 of 27
7. Learned APP for the State argued that as per school records, i.e.
Admission Register (Ex.PW-5/A), Admission Certificate (Ex. PW-5/B) and
the certificate (Ex. PW-5/D) issued by the Principal of MCD Girls Primary
School, the date of birth of the victim was 28.10.1999 and prosecutrix was
admitted in school on 11.07.2006 and had passed 5 th standard on
31.03.2010. Despite the prosecution proving the fact that the victim was a
minor - about 13 years and 3 months of age on the date of incident, the
accused/respondent has been acquitted. Ms. Tiwari submits that consent of
the victim- who is of 13 years of age is immaterial, and the deposition of the
victim that she resided with the respondent/accused as his wife, was
sufficient for conviction of the accused even in the absence of medical
evidence. She further submits that as per Section 375 IPC, having sexual
intercourse with a girl less than 16 years of age is an offence, and consent
does not obliterate the offence. She further submitted that if the testimony
of the prosecutrix is found to be reliable, the same needs no corroboration,
even by medical evidence.
8. Learned APP submits that the prosecutrix was a minor girl at the time
of the alleged incident and the said fact has been duly proved by the
prosecution. The age given by the father of the prosecutrix in the FIR is 13
years. The prosecutrix during her statement recorded under Section 164
Cr.P.C. as well as at the time of recording her testimony gave her age as 14
years. Even during medical examination, she had given her age as 14 years
before the doctor. Thus, it was established that the prosecutrix was a minor
girl at the time of her kidnapping. She further submitted that it has come in
the testimony of the prosecutrix that she was taken away by the accused to
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Aurai, Jalaun and she was in constant touch with the accused on mobile
phone, which makes a case of allurement against the accused that he had
taken away the prosectrix from the lawful custody of her guardian for the
purpose of commission of sexual intercourse.
9. Learned APP has relied on the judgments reported in Vijay alias
Chinee vs. State of Madhya Pradesh, (2010) 8 CC 191; State of Punjab vs.
Gurmit Singh and Others, AIR 1996 SC 1393; Raju Yadav vs. State, 2016
(2) Crimes 392 (Del); Radhu vs. State of Madhya Pradesh, 2007 Cri.LJ
4704; Parkash vs. State of Haryana, (2004) 1 SCC 339.
10. In response to the contentions raised on behalf of the State, Ld.
counsel for the respondent/accused has urged that the impugned judgment is
a well reasoned one, and does not call for any interference by this court.
11. Learned counsel for the respondent/accused has submitted that there
is no evidence on record to connect the accused with the kidnapping of the
prosecutrix. He submits that as per the testimony of the prosecutrix, she of
her own had gone to the native place of the accused and there was no
allurement. He also submits that the prosecutrix was a major and not a
minor, as alleged by the prosecution, so, no case of taking away of the
prosecutrix from the custody of lawful guardianship is made out and, since
she was a major girl, no offence of rape is made out as they had performed
marriage. Ld. counsel further submitted that no case of commission of rape,
or an offence under the POCSO Act is made out for the reasons that the
prosecutrix was a major, and it has come in her deposition that accused did
not have any sexual intercourse, but only tried to do so.
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12. In support of his submissions, learned counsel for the respondent
relied upon Anil Kumar vs. State of U.P, 2004 (4) RCR (Crl.) 358; Devki
Nandan vs. State of Haryana and Another, 2015(4)RCR(Crl.)64; Alamelu
and Another vs. State Rep. by Inspector of Police, 2011AIR 715, Shyam
and Another vs. State of Maharashtra, 1995 AIR(SC) 2169. We shall deal
with these decisions a little later in our opinion.
13. We have gone through the submissions made by the parties and given
our thoughtful consideration to the matter.
14. The victim (PW1) is the most important witness in the present case.
She deposed that in the month of December 2012, Hargovind was residing
in her house. On 22.01.2013, she had left her house at about 7 a.m. At that
time, she was wearing school uniform and was having school bag in which
two pairs of her clothes were lying. She went to Ghaziabad railway station
and there she changed her school uniform. She had gone to the railway
station to catch a train to Aurai, District Jalaun. She had boarded the train
for Aurai and reached there. During the duration of journey, she was alone.
She had gone to Aurai to meet Hargovind as he had called her there.
Hargovind called her through telephone and called her at Aurai. Hargovind
was present at Aurai railway station when she reached there. Hargovind
took her to his house. She stayed there for one night. Father of Hargovind
had arranged one room on rent on 23.01.2003. It was meant for residence of
her, and Hargovind. She along with Hargovind resided in that room and on
27.01.2003, she had married Hargovind at Shiv Mandir. Thereafter, she
along with Hargovind resided in the said room as husband and wife from
Crl.A.334/2018 Page 6 of 27
23.01.2003 to 25.02.2003. On 25.02.2003, she had asked Hargovind to take
her to Delhi at her parents‟ house. She had assured Hargovind that her
parents would agree to their relationship. She, along with Hargovind, left
for Delhi and reached Delhi next morning. From the railway station, they
had come to Yamuna Vihar bus stop. Some of her neighbours had noticed
their presence at the bus stop and informed at her house. Thereafter, her
father with his foofa (uncle) came there. Her father called the police. Police
came and took her and Hargovind to the police station. She further stated
that her statement under Section 164 Cr.P.C. was recorded vide Ex.PW1/A
and she identified her signatures thereon. She was also taken to the hospital
where she refused for her medical examination. She told her date of birth as
29.10.1999. PW1 duly identified the accused in the Court during her
deposition.
15. During cross-examination, PW1 stated that she had proceeded from
her house for the school on the day of the incident, but she went to
Ghaziabad railway station. She reached at Jyoti Nagar red light where
accused met her and thereafter they proceeded to railway station. They
boarded a train at Ghaziabad railway station at about 9 a.m. She remained at
the house of accused for two-three days before marriage. She denied that
the accused did not induce her for elopement with him or that she was not
kept by the accused at his house or at any other place. She admitted that the
accused did not make sexual intercourse with her. She voluntarily stated
that the accused tried to do sexual intercourse but was not successful.
Crl.A.334/2018 Page 7 of 27
16. To deal with the rival contentions of the parties, we have gone
through the material available on record. Ex.PW4/A is the complaint made
by the father (PW4) of the prosecutrix (PW1) regarding her missing. This
complaint Ex.PW4/A shows that PW4 had given the age of his daughter
(PW1) as 13 years. This complaint Ex.PW4/A was made the basis for
registration of the FIR of the instant case. It is the case of the prosecution
that after the apprehension of the accused and the prosecutrix at Yamuna
Vihar bus stand, the police took both of them to the police station. The
statement of the prosecutrix was recorded under Section 164 Cr.P.C. vide
Ex.PW1/A. In her statement under Section 164 Ex.PW1/A and before the
Magistrate also, the prosecutrix (PW1) gave her age as 14 years. She was
even sent for medical examination vide MLC Ex.PW8/A wherein also she
gave her age as 14 years before the doctor.
17. Pertinently, the prosecutrix gave her statement in favour of the
accused on other aspects in as much, as, she said that she had, of her own
will, eloped with the accused and that she was in love with him. She also
stated that she had told the accused, even if her family was against their
marriage; she wanted to get married to him. Thus, she made the said
statement to protect the accused. However, even while doing so, she gave
her date of birth as 28.10.1999 and did not claim that she was 16 years or
more on the date of her elopement with the accused.
18. The victim/ prosecutrix was examined medically vide Ex. PW8/ dated
27.02.2013, wherein her age was recorded as 14 years. Pertinently, in the
MLC Ex. PW8/A, the doctor has recorded her as "unfit for statement
Crl.A.334/2018 Page 8 of 27
(appears minor age)". Pertinently, in the cross examination of the father
PW4, though, certain questions were put to him on the aspect of the age of
the prosecutrix, it was not suggested to him that the prosecutrix was not 13
years of age on the date of the incident i.e., 22.01.2013. No challenge was
raised to his statement that she was studying in 8th class in Govt. School, C-
1, Yamuna Vihar, Delhi in the year 2013. No challenge was raised that she
was 15 years of age as on the date when the testimony of PW4 was recorded
i.e., 3.2.2015. PW5-Principal EDMC Primary School, Yamuna Vihar, C-4,
New Delhi, deposed that the victim was admitted in their school on
11.07.2006 in class 2nd. As per the school records, her date of birth was
28.10.1999. The documents led in evidence by PW5 show that her date of
birth contemporaneously i.e., in the year 2006 was disclosed by her father as
28.10.1999.
19. The issue that arises for consideration is, as to what approach the
Court should adopt in the matter of determination of age of the prosecutrix,
if the prosecution - while claiming that the prosecutrix/ victim is below the
age of 16 years, or 12 years - as the case may be, does not prove her birth
certificate on record. Would the Court be justified in presuming and
proceeding on the basis that the prosecutrix/ victim is a major, or above the
age of discretion, i.e. 16 years, or the Court is obliged to call for the medical
examination of the victim/ prosecutrix to determine her age?
20. Recently, we had occasion to consider some aspect about the age of
the victim in our decision rendered in State of NCT of Delhi v.
Dharmendra, Crl. A 1184/2017 decided on 13.03.2018. In that case the age
Crl.A.334/2018 Page 9 of 27
of the victim was disclosed by prosecution as 9 years. The learned ASJ held
that the prosecution had not established that the victim was below 12 years
of age- which is relevant for the purpose of Section 9 of the POCSO Act.
This Court, inter alia, observed as follows in the said decision:
―26. The birth certificate of a child may not have been
got made; it may not be available/ preserved, or; it may not
have been led in evidence in a given case. In either of these
situations, can it be said that the age of the victim would be
presumed to be above 12 years or 18 years, even though the
other circumstances contra-indicate such an assumption? In
our view, no such presumption can be drawn and the Court
would have to examine the circumstances and evidence in each
case to arrive at its own conclusion on the aspect of age of the
victim.
27. The learned ASJ has held that the age of the victim
has not been proved to be below 12 years on the premise that
the victim's birth certificate issued by an agency empowered
under the law to issue the same has not been brought on
record. No other similar document has been placed on record.
28. Section 35 of the Indian Evidence Act, 1872 (the
Evidence Act) states that ―An entry in any public or other
official book, register or record or an electronic record, stating
a fact in issue or relevant fact, and made by a public servant in
the discharge of his official duty, or by any other person in
performance of a duty specially enjoined by the law of the
country in which such book, register, or record or an electronic
record is kept, is itself a relevant fact‖.
29. As noticed hereinabove, PW-2 the school principal
produced the admission register Ex.PW-2/C; the school
application form Ex.PW-2/A and the copy of the affidavit of the
mother of the victim Ex.PW-2/B, on the basis of which the date
of birth of the victim in the school record was recorded
Crl.A.334/2018 Page 10 of 27
16.06.2013 when the victim/ child was admitted in Class-II on
18.08.2010. Pertinently, the incident in question is of
15.08.2013. Firstly, the affidavit had been given by the mother
of the victim/child and not by a stranger who may not be aware
of his date of birth. Secondly, the affidavit and the application
form were processed and acted upon by the school, and the
date of the birth of the victim/ child recorded in the school
record by the school authorities in the discharge of the official
duty. Thirdly, the date of birth of the child was disclosed by the
mother as 16.07.2013 much before the incident took place and
thus, there was no occasion for the mother to falsely declare
the date of birth of her child/ victim.
30. The learned ASJ has placed reliance on the
judgment of the Supreme Court in Satpal Singh Vs. State of
Haryana, (2010) 8 SCC 714, in support of his aforesaid
conclusion. A reading of the said judgment shows that the
learned ASJ has applied the said decision mechanically and
without appreciation thereof. In fact, on our reading we find
that the said decision supports the case of the prosecution in
the present case. Satpal Singh (supra) was a case of rape of a
girl while she had gone with her brother to the fields for
collecting cattle fodder. The prosecutrix had raised an alarm
and upon hearing the same, her brother came running to the
place of occurrence, by when the appellant/ convict had
escaped from the scene. The Trial Court convicted the
appellant and the High Court dismissed his appeal. However,
his sentence was reduced by the High Court from 7 years to 5
year Rigorous Imprisonment, apart from fine for the offence
under Section 376 of the IPC. Before the Supreme Court, the
appellant raised primarily two issues. The first was that the
making of the FIR was belated and, secondly, that the
prosecutrix was a major, and not minor at the time of the
incident. We are concerned only with the second aspect in the
present case. We consider it appropriate to reproduce the
relevant extract from the judgment of the Supreme Court in
Satpal Singh (supra) dealing with the said aspect. The same
reads as follows:
Crl.A.334/2018 Page 11 of 27
―19. So far as the issue as to whether the
prosecutrix was a major or minor, it has also been
elaborately considered by the courts below. In
fact, the school register has been produced and
proved by the Headmaster, Mohinder Singh (PW
3). According to him, Rajinder Kaur (PW 15), the
prosecutrix, was admitted in Government School,
Sharifgarh, District Kurukshetra on 2-5-1990 on
the basis of school leaving certificate issued by
Government Primary School, Dhantori. In the
school register, her date of birth has been
recorded as 13-2-1975. The question does arise as
to whether the date of birth recorded in the school
register is admissible in evidence and can be
relied upon without any corroboration. This
question becomes relevant for the reason that in
cross-examination, Shri Mohinder Singh,
Headmaster (PW 3), has stated that the date of
birth is registered in the school register as per the
information furnished by the person/guardian
accompanying the students, who comes to the
school for admission and the school authorities do
not verify the date of birth by any other means.
20. A document is admissible under Section 35 of
the Evidence Act, 1872 (hereinafter called as ―the
Evidence Act‖) being a public document if
prepared by a government official in the exercise
of his official duty. However, the question does
arise as to what is the authenticity of the said entry
for the reason that admissibility of a document is
one thing and probity of it is different.
21. In State of Bihar v. Radha Krishna
Singh [(1983) 3 SCC 118 : AIR 1983 SC 684] this
Court dealt with a similar contention and held as
under:
Crl.A.334/2018 Page 12 of 27
―40. ... Admissibility of a document is
one thing and its probative value
quite another--these two aspects
cannot be combined. A document may
be admissible and yet may not carry
any conviction and weight or its
probative value may be nil. ... (SCC
p. 138, para 40)
***
53. ... where a report is given by a
responsible officer, which is based on
evidence of witnesses and documents
and has a statutory flavour in that it
is given not merely by an
administrative officer but under the
authority of a statute, its probative
value would indeed be very high so as
to be entitled to great weight. (SCC p.
143, para 53)
***
145. (4) The probative value of
documents which, however ancient
they may be, do not disclose sources
of their information or have not
achieved sufficient notoriety is
precious little. (SCC p. 171, para
145)‖
22. Therefore, a document may be admissible, but
as to whether the entry contained therein has any
probative value may still be required to be
examined in the facts and circumstances of a
particular case. The aforesaid legal proposition
stands fortified by the judgments of this Court
in Ram Prasad Sharma v. State of Bihar [(1969) 2
SCC 359] ; Ram Murti v. State of Haryana [(1970)
3 SCC 21 : 1970 SCC (Cri) 371 : AIR 1970 SC
1029] ; Dayaram v. Dawalatshah [(1971) 1 SCC
358 : AIR 1971 SC 681] ; Harpal Singh v. State of
H.P. [(1981) 1 SCC 560 : 1981 SCC (Cri) 208 :
AIR 1981 SC 361] ; Ravinder Singh
Gorkhi v. State of U.P. [(2006) 5 SCC 584 :
(2006) 2 SCC (Cri) 632] ; Babloo Pasi v. State of
Jharkhand [(2008) 13 SCC 133 : (2009) 3 SCC
(Cri) 266] ; Desh Raj v. Bodh Raj [(2008) 2 SCC
186] and Ram Suresh Singh v. Prabhat
Singh [(2009) 6 SCC 681 : (2010) 2 SCC (Cri)
1194] . In these cases, it has been held that even if
the entry was made in an official record by the
official concerned in the discharge of his official
duty, it may have weight but still may require
corroboration by the person on whose information
the entry has been made and as to whether the
entry so made has been exhibited and proved. The
standard of proof required herein is the same as in
other civil and criminal cases. Such entries may be
in any public document i.e. school register, voters
list or family register prepared under the rules and
regulations, etc. in force, and may be admissible
under Section 35 of the Evidence Act as held
in Mohd. Ikram Hussain v. State of U.P. [AIR
1964 SC 1625 : (1964) 2 Cri LJ 590] and Santenu
Mitra v. State of W.B. [(1998) 5 SCC 697 : 1998
SCC (Cri) 1381 : AIR 1999 SC 1587]
23. There may be conflicting entries in the official
document and in such a situation, the entry made
at a later stage has to be accepted and relied
upon. (Vide Durga Singh v. Tholu [AIR 1963 SC
361] .)
24. While dealing with a similar issue in Birad
Mal Singhvi v. Anand Purohit[1988 Supp SCC 604
: AIR 1988 SC 1796] , this Court held as under:
(SCC p. 619, para 15)
―15. ... To render a document
admissible under Section 35, three
conditions must be satisfied, firstly,
entry that is relied on must be one in
a public or other official book,
register or record; secondly, it must
be an entry stating a fact in issue or
relevant fact; and thirdly, it must be
made by a public servant in discharge
of his official duty, or any other
person in performance of a duty
specially enjoined by law. An entry
relating to date of birth made in the
school register is relevant and
admissible under Section 35 of the
Act, but entry regarding to the age of
a person in a school register is of not
much evidentiary value to prove the
age of the person in the absence of
the material on which the age was
recorded.‖
25. A Constitution Bench of this Court, while
dealing with a similar issue in Brij Mohan
Singh v. Priya Brat Narain Sinha [AIR 1965 SC
282] , observed as under: (AIR p. 286, para 18)
―18. ... The reason why an entry
made by a public servant in a public
or other official book, register, or
record stating a fact in issue or a
relevant fact has been made relevant
is that when a public servant makes it
himself in the discharge of his official
duty, the probability of its being truly
and correctly recorded is high. That
probability is reduced to a minimum
when the public servant himself is
illiterate and has to depend on
somebody else to make the entry. We
have therefore come to the conclusion
that the High Court is right in holding
that the entry made in an official
record maintained by the illiterate
chowkidar, by somebody else at his
request does not come within Section
35 of the Evidence Act.‖
26. In Vishnu v. State of Maharashtra [(2006) 1
SCC 283 : (2006) 1 SCC (Cri) 217] while dealing
with a similar issue, this Court observed that very
often parents furnish incorrect date of birth to the
school authorities to make up the age in order to
secure admission for their children. For
determining the age of the child, the best evidence
is of his/her parents, if it is supported by
unimpeccable documents. In case the date of birth
depicted in the school register/certificate stands
belied by the unimpeccable evidence of reliable
persons and contemporaneous documents like the
date of birth register of the municipal corporation,
government hospital/nursing home, etc., the entry
in the school register is to be discarded.
27. Thus, the entry in respect of age of the child
seeking admission, made in the school register by
semi-literate chowkidar at the instance of a person
who came along with the child having no personal
knowledge of the correct date of birth, cannot be
relied upon.
28. Thus, the law on the issue can be summarised
that the entry made in the official record by an
official or person authorised in performance of an
official duty is admissible under Section 35 of the
Evidence Act but the party may still ask the
court/authority to examine its probative value. The
authenticity of the entry would depend as to on
whose instruction/information such entry stood
recorded and what was his source of information.
Thus, entry in school register/certificate requires
to be proved in accordance with law. Standard of
proof for the same remains as in any other civil
and criminal case.
29. In case, the issue is examined in the light of the
aforesaid settled legal proposition, there is
nothing on record to corroborate the date of birth
of the prosecutrix recorded in the school register.
It is not possible to ascertain as to who was the
person who had given her date of birth as 13-2-
1975 at the time of initial admission in the primary
school. More so, it cannot be ascertained as who
was the person who had recorded her date of birth
in the primary school register. More so, the entry
in respect of the date of birth of the prosecutrix in
the primary school register has not been produced
and proved before the trial court. Thus, in view of
the above, it cannot be held with certainty that the
prosecutrix was a major. Be that as it may, the
issue of majority becomes irrelevant if the
prosecution successfully establishes that it was not
a consent case.‖
31. From the above extract, it would be seen that in Satpal
Singh (supra), the evidence led by the prosecution to establish
the date of birth/ age of the prosecutrix on the date of the
incident was the school register of the Government school,
wherein she was admitted on 02.05.1990. The prosecutrix had
been admitted on the basis of the school leaving certificate
Issued by the Government primary school. In the said register,
her date of birth had been recorded as 13.02.1975. The
Supreme Court posed the question whether the date of birth
recorded in the school register is admissible in evidence and
can be relied upon without any corroboration. This question
arose since the Headmaster of the Government school had
stated that the date of birth was registered in the school
register as per the information furnished by the parents/
guardian accompanying the students who came to the school
for admission, and the school authorities did not verify the date
of birth by any other means. The Supreme Court referred to
Section 35 of the Evidence Act. It observed that admissibility of
a document is one thing, and probity of the entry made in the
said document is a different thing. A document may be
admissible but as to whether the entry contained therein has
any probative value may still required to be examined in the
facts & circumstances of a particular case. It was held that
even if an entry is made by an official in the discharge of his
official duty, it may have weight but still may require
corroboration by the person on whose information the entry
has been made and as to whether the entry was made has been
exhibited and proved.
32. The Supreme Court referred to Birad Mal Singhvi
(supra), wherein it was held that an entry relating to date of
birth made in the school register is relevant and admissible
under Section 35 of the Act, but entry regarding the age of a
person in a school register is of not much evidentiary value to
prove the age of the person in the absence of the material on
which the age was recorded.
33. The rationale behind making the entry made by a public
servant in a public or other official register or record as a
relevant fact was noticed in Brij Mohan Singh (supra). While
doing so, the Supreme Court rejected the reliance placed on the
entry made in the school register with regard to the date of
birth, since the same had been made by an illiterate chowkidar
which could not be relied upon. The entry made in the school
register with regard to the date of birth provided by the parents
could be disregarded, if it stands belied by unimpeachable
evidence of reliable persons and contemporaneous documents
like the date of birth register of a municipal corporation;
government hospital/ nursing home, etc.
x x x x x x x x x
35. The learned ASJ has observed in the paragraph 6 of the
impugned judgment, which is extracted hereinabove, that ―as
per rules the birth certificate of the school first attended is
required which has not been produced‖. The learned ASJ has
made no reference to any specific ―rule‖ in this regard.
However, we take it, that the learned ASJ had Rule 12 of the
Juvenile Justice (Care & Protection of Children) Rules 2007
(JJ Rules for short) in his mind.
36. Firstly, we may observe that the Juvenile Justice (Care
& Protection of Children) Act 2015 (JJ Act for short) and the
JJ Rules have been framed with the object of ―catering to the
basic needs through proper care, protection, development,
treatment, social reintegration, by adopting a child-friendly
approach in the adjudication and disposal of matters in the
best interest of children and for their rehabilitation through
processes provided, and institutions and bodies established, ...
... ...‖ (emphasis supplied) (See preamble to the JJ Act). The
expression ―child-friendly‖ is defined in Section 2(15) of the
JJ Act to mean ―any behavior, conduct, practice, process,
attitude, environment or treatment that is humane, considerate
and in the best interest of the child;‖. Under Section 7, the
Juvenile Justice Board constituted under the JJ Act is obliged
to observe its rules in regard to transaction of business, and to
ensure that all procedures are child-friendly. The whole
approach adopted by the authorities under the JJ Act, in the
administration of the said Act, is to lean in favour of the
accused/ juvenile in conflict with law. It is in this context that
Rule 12 of the JJ Rules - which prescribes the procedure to be
followed in determination of the age of the juvenile in conflict
with law, has to be understood and applied. The said Rules,
insofar, as it is relevant reads as follows:
―12. Procedure to be followed in determination of
Age.―
(1) In every case concerning a child or a juvenile
in conflict with law, the court or the Board or as
the case may be the Committee referred to in rule
19 of these rules shall determine the age of such
juvenile or child or a juvenile in conflict with law
within a period of thirty days from the date of
making of the application for that purpose.
(2) The court or the Board or as the case may be
the Committee shall decide the juvenility or
otherwise of the juvenile or the child or as the case
may be the juvenile in conflict with law, prima
facie on the basis of physical appearance or
documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry
shall be conducted by the court or the Board or, as
the case may be, the Committee by seeking
evidence by obtaining -
(a) (i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
(ii) the date of birth certificate from the
school (other than a play school) first
attended; and in the absence whereof;
(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;
(b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be
done, the Court or the Board or, as the case may
be, the Committee, for the reasons to be recorded
by them, may, if considered necessary, give benefit
to the child or juvenile by considering his/her age
on lower side within the margin of one year.
and, while passing orders in such case shall, after
taking into consideration such evidence as may be
available, or the medical opinion, as the case may
be, record a finding in respect of his age and
either of the evidence specified in any of the
clauses (a)(i), (ii), (iii) or in the absence whereof,
clause (b) shall be the conclusive proof of the age
as regards such child or the juvenile in conflict
with law.‖
Pertinently, in cases falling under sub-rule (3)(b), the
Court/ Board/ Committee shall, for reasons to be recorded,
give benefit to the child or juvenile by considering his/ her age
on the lower side within the margin of one year.
37. No doubt, the Supreme Court in Mahadeo (supra) held
that the same yardstick could be followed by the Court for the
purpose of ascertaining the age of a victim, as is prescribed in
Rule 12 of the JJ Rules, however, in our considered view, the
said observations of the Supreme Court have to be viewed,
firstly, in the factual context in which they were made, and also
while keeping in mind the fact that stricto sensu Rule 12 of the
JJ Rules is framed with a view to provide protection to the
accused who may be juveniles, and not with a view to cause
prejudice to a victim of a crime who may be a minor.
38. In Mahadeo (supra), the appellant was convicted of the
offence punishable under Section 363, 506 & 376 IPC. The
High Court dismissed the appeal of the appellant. The two
Courts affirmed the finding of fact that the prosecutrix was 15
years and 4 months of age when the offences were committed.
The said findings were premised on the evidence led by the
prosecution in the form of school leaving certification of the
prosecutrix proved on record by the Headmistress of the
school, which disclosed her date of birth 20.05.1990 as also the
admission form and the transfer certificate issued by the
primary school where the prosecutrix had studied, led in
evidence by the Headmaster of the primary school. In the
records of both the schools the date of birth of the prosecutrix
was recorded as 20.05.1990. On behalf of the appellant, it was
argued that the prosecutrix was not below the age of 18 years
at the time of occurrence. In this regard, the appellant relied
upon the evidence of doctor PW-8 who examined the
prosecutrix. She deposed that the age of the prosecutrix could
have been between 17 to 25 years at the relevant time. The
Trial Court rejected the reliance placed by the defence on the
version of PW-8, since the same was not premised on scientific
examination of the prosecutrix by conduct of tests such as the
ossification test. The mere opinion of PW-8 - the doctor, could
not be acted upon. The Supreme Court agreed with the said
finding of the Trial Court and in that context made reference to
Rule 12 of the JJ Rules. The Supreme Court in the light of Rule
12(3)(b) observed that: ―only in the absence of alternative
methods described under Rules 12(3)(a)(i) to (iii), the medical
opinion can be sought for. In the light of such a statutory rule
prevailing for ascertainment of the age of a juvenile, in our
considered opinion, the same yardstick can be rightly followed
by the courts for the purpose of ascertaining the age of a victim
as well.‖
39. Pertinently, in Mahadeo (supra) as well - like in the
present case, the birth certificate of the prosecutrix had not
been produced. What had been produced were the school
records from the primary school and the Daneshwar Vidyalaya
which recorded the date of birth of the prosecutrix consistently
as 20.05.1990. The Supreme Court accepted the said evidence
as good evidence to prove the minority of the prosecutrix as on
the date of the offence. Thus, though the priority/ procedure
laid down in Rule 12 of the JJ Rules would be attracted to
determine the age of the victim/ prosecutrix, the tendency to
lean in favour of the accused (in the case of a juvenile in
conflict with the law) would, in such situations, be to lean in
favour of the minority of the victim/ prosecutrix while
determining the age of the victim/ prosecutrix.‖
21. This Court also took notice of the obligation cast on the Ld. ASJ by
Section 34(2) of the POCSO Act, Section 311 of the Code, and Section 165
of the Evidence Act to get the victim medically examined. Even Rule 12 of
the Juvenile Justice Rules (for short, ‗the JJ Rules') require the adoption of
that course of action if the evidence led by the prosecution on the aspect of
age of the victim is not sufficient, and the Court is not in a position to return
a definite finding that the prosecutrix/ victim was above the age of 16 or 18
years, as the case may be. We took notice of our own judgment in the State
Govt of NCT of Delhi Vs. Sonu Kumar, Crl. A. 1137/2017 decided on
07.03.2018, wherein we had observed:
―28. ... ... ... In a given case, where the age of the prosecutrix
may be bordering 18 years, and on physical appearance it is
not obvious that the prosecutrix was a minor on the date of the
occurrence, the Court may, with a view to satisfy itself, direct
the conduct of medical examination of the prosecutrix to
ascertain her age, or to call for other evidence in exercise of its
power under Section 311 Cr PC read with Section 165 of the
Indian Evidence Act.
29. In Jamatraj Kewalji Govani v. State of Maharashtra,
AIR 1968 SC 178, the Supreme Court held that Section 540 of
Code of Criminal Procedure, 1898 (which corresponds to
Section 311 of Code of Criminal Procedure, 1973) read with
Section 165 of the Evidence Act confers wide jurisdiction on the
Court, with no limitation on its power to summon any person as
a witness, or examine any person present in Court although not
summoned, or recall or reexamine a witness already examined.
The Supreme Court in this decision, inter alia, held:
―10. Section 540 is intended to be wide as the
repeated use of the word ‗any' throughout its
length clearly indicates. The section is in two
parts. The first part gives a discretionary power
but the latter part is mandatory. The use of the
word 'may' in the first part and of the word
'shall' in the second firmly establishes this
difference. Under the first part, which is
permissive, the court may act in one of three
ways: (a) summon any person as a witness, (b)
examine any person present in court although
not summoned, and (c) recall or re-examine a
witness already examined. The second part is
obligatory and compels the Court to act in these
three ways or any one of them, if the just decision
of the case demands it. As the section stands there
is no limitation on the power of the Court arising
from the stage to which the trial may have
reached, provided the Court is bona fide of the
opinion that for the just decision of the case, the
step must be taken. It is clear that the
requirement of just decision of the case does not
limit the action to something in the interest of the
accused only. The action may equally benefit the
prosecution. There are, however, two aspects of
the matter which must be distinctly kept apart, The
first is that the prosecution cannot be allowed
to rebut the defence evidence unless the prisoner
brings forward something suddenly and
unexpectedly. ... ...‖. (emphasis supplied)
30. Similarly, in Mohanlal Shamji Soni v. Union of India &
Anr., AIR 1991 SC 1346, the Supreme Court observed in para
27 of the decision as follows:
―27. The principle of law that emerges from the
views expressed by this Court in the above
decisions is that the criminal court has ample
power to summon any person as a witness or
recall and re-examine any such person even if the
evidence on both sides is closed and the
jurisdiction of the court must obviously be
dictated by exigency of the situation, and fair play
and good sense appear to be the only safe guides
and that only the requirements of justice
command the examination of any person which
would depend on the facts and circumstances of
each case‖. (emphasis supplied)
31. But this course of action would not even be called for to
be adopted, when the prosecutrix is so small and there is no
reason to raise a doubt with regard to the age of the
prosecutrix on the date of the occurrence - either by the
defence, or on the physical appearance of the prosecutrix
before the Court.‖
22. The Ld. ASJ has referred to Rakesh Kumar Vs. State, 2004 (1) JCC
110 Delhi, wherein this Court held that the transfer certificate does not
indicate who got the victim/ prosecutrix admitted initially and on what basis
the date of birth was recorded in the school record. In the absence of birth
certificated and other reliable material regarding the date of birth, it cannot
be said with certainty that the date of birth was the one claimed by the
prosecution on the basis of the school certificate. The Division Bench
observed that " It is a matter of common knowledge that at the time of
admission in the school the parents generally tend to get the age of their
ward recorded on the lower side so that they do not become over aged while
searching job and they remain in service for longer period‖
23. The Ld. ASJ has also referred to and relied upon Harpal Vs. State of
Haryana, 2004 (1) RCR (Crl.), where the school leaving certificate was not
believed in the absence of other evidence, and Devanand Vs. State of NCT
of Delhi, 2003 (1) RCR Crl., wherein the entry in the school record was
based on school leaving certificate and not on birth certificate.
24. If the prosecutrix was a minor on the relevant date, in the face of the
evidence brought on record, the accused may not be able to escape the
charges framed against him. However, in our view the evidence brought on
record does not conclusively establish the age of the prosecutrix to be above
the age of discretion i.e. 16 years or more, as on 22.01.2013.
25. Looking to the facts and circumstances taken note of hereinabove, as
also the fact that the victim/ prosecutrix had eloped with the accused without
use of force or coercion - we are of the considered opinion that the Ld. ASJ
should have resorted to medical examination of the prosecutrix in terms of
Rule 12 of the JJ Rules, to determine her age before proceeding with the
matter. By not doing so, the Ld. ASJ has failed to exercise the jurisdiction
and responsibility that vested upon him while trying a serious offence.
26. Thus, we direct the recording of further evidence in exercise of our
jurisdiction under Section 311 Cr.P.C. read with Section 165 of the
Evidence Act and Section 34 of the POCSO Act on the aspect of age of the
prosecutrix during the relevant period, i.e. between 22.01.2013 and
27.02.2013, including by resort to Rule 12 of the JJ Rules, if necessary. We
direct the Special Court to record additional evidence on this aspect and
send the same to this Court within the next 6 months. The prosecution, and
the defence would be entitled to lead additional evidence on the said aspect.
27. The hearing in the appeal is, accordingly, deferred. The matter shall
not be treated as part-heard. The trial court record be sent back to the
Special Judge forthwith.
28. List the appeal on 06.02.2019.
(VIPIN SANGHI) (P.S. TEJI)
JUDGE JUDGE
JULY 02, 2018
